The Slatest

Brett Kavanaugh Once Said He Thought a President Could Pack the Supreme Court

Brett Kavanaugh seated and smiling.
Supreme Court nominee Brett Kavanaugh during a meeting with U.S. Sen. Dean Heller on Capitol Hill on July 18.
Alex Wong/Getty Images

Among the thousands of documents that Supreme Court nominee Brett Kavanaugh released to the Senate Judiciary Committee Saturday, one new tranche includes the transcript of a 2000 CNN interview in which he claimed that while it wouldn’t be easy for a president to pack the court with justices who could be relied upon to advance a political agenda—a president willing to expend considerable “capital” on a “bloody” confirmation could get it done.

The transcript comes from a June 2000 CNN segment from Greta Van Susteren’s show Burden of Proof, on which Kavanaugh was a guest. Kavanaugh, appearing as a former Supreme Court clerk, was brought on to discuss the court’s recently completed term.

In advance of what would become of the 2000 election and Bush v. Gore, Van Susteren asked Kavanaugh about whether a president could indeed manage to stack the Supreme Court. The host asked another panelist—another former SCOTUS clerk, Chai Feldblum—whether a future president Bush or Gore could “really pack the court in the sense that you can put justices on who are going to have your agenda?” She then turned to Kavanaugh to ask whether a president could genuinely ensure that any justice would vote along consistently predictable lines. From the transcript:

VAN SUSTEREN: How do you explain then, and let me throw this to Brett, and then maybe I’ll make you explain Chai’s point, is that Justice Souter, I think, was a big surprise to President Bush and I also think that Earl Warren was a big surprise. Everyone thought that he was going to be this hugely conservative, and he was very liberal in the court. 

KAVANAUGH: Well, and Justice O’Connor, who was the fifth [vote], yesterday, to strike down the partial-birth abortion statute, was appointed by President Reagan. I don’t think—I think presidents can pack the court, but it takes a lot of political capital and will power to do it, and most presidents don’t want to expend a lot of political capital on a bloody Supreme Court nomination. We’ve seen that time and again, to pick the consensus pick who turns out to be more moderate and thus less predictable, that’s what’s happened.   

Of course, what did happen just a few months later would prove that a president willing to expend his political capital on a series of bloody battles could indeed transform the court forever. Kavanaugh himself would soon join the George W. Bush campaign’s legal effort to block the ballot-recount efforts in the state of Florida. And the Supreme Court—along purely partisan political lines—would soon expend its own political capital to conclude that the recount violated a constitutional provision that most of those justices in the majority had never enforced before and would never enforce again. Within a few months, George W. Bush would be installed as president and eventually expend his political capital to seat both John Roberts and Samuel Alito on the Supreme Court, neither of whom would prove to be any kind of unpredictable moderate, like Earl Warren or David Souter.

Indeed, in this same CNN interview, the panelists discussed a “partial-birth abortion” decision that had struck down a state ban, with O’Connor unpredictably siding with the court’s liberals to protect reproductive freedom. Yet what was functionally the exact same law would later be upheld, just a few short years later, when the moderate O’Connor retired and Alito joined the court.

The fact that the younger Kavanaugh in 2000 both lamented that presidents usually wouldn’t expend the political capital to weather a bloody confirmation battle and then went on to work to install a president willing to do just that shows how fully prescient the young lawyer would be. Within months the GOP was prepared to fight the bloody battles necessary to advance their agendas in the high court—first for the presidency and then for the courts themselves—up to and including the outright denial of a seat to Merrick Garland in 2016. And now the young lawyer who predicted that where there was a will, there was a way to pack the courts, has himself gone on to become the “predictable” nominee who won’t let the party be Soutered or O’Connored again.